Julie Ann Ingalls v. Robert Wayne Ingalls

• Court: Court of Appeals of Virginia
• Decided: October 8, 2002
• Docket: 0758021
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Felton and Senior Judge Hodges Argued at Chesapeake, Virginia

JULIE ANN INGALLS MEMORANDUM OPINION * BY v. Record No. 0758-02-1 JUDGE WILLIAM H. HODGES OCTOBER 8, 2002 ROBERT WAYNE INGALLS

FROM THE CIRCUIT COURT OF YORK COUNTY N. Prentis Smiley, Jr., Judge

McClanahan Ingles (Martin, Ingles & Ingles, Ltd., on brief), for appellant.

Kenneth B. Murov for appellee.

Julie Ann Ingalls, wife, appeals a decision of the trial

judge denying her motion for an increase in the monthly spousal

support payments she receives from Robert Wayne Ingalls, husband.

Wife contends the trial court erred in: (1) finding that

husband's income had not materially increased; (2) finding that

husband's increase in savings after April 2000 did not demonstrate

a material change in husband's income; (3) not increasing

husband's spousal support obligation; (4) not increasing husband's

spousal support obligation based on the difference in incomes

available to husband and wife; and (5) failing to award wife

attorney's fees. Finding that the trial judge did not abuse his

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. discretion in refusing to increase the monthly spousal support

award, we affirm the trial judge's rulings.

BACKGROUND

The parties were divorced by final decree entered on

January 20, 2000. The parties had four children who live with

wife. On April 28, 2000, the trial judge held a hearing on

several issues, including spousal support. By orders entered on

August 3, 2000 and November 13, 2001, nunc pro tunc to April 28,

2000, the trial judge ordered husband to pay wife spousal

support of $1,800 per month.

Husband retired from the military in July 2001. He

receives monthly income from a civilian job and his military

retirement benefits. On November 13, 2001, husband filed a

motion for a reduction in his monthly spousal support obligation

based upon his reduction in income since his retirement.

Husband also alleged that wife's income had increased since she

had been receiving her share of his military retirement

benefits. Wife filed a motion for an increase in spousal

support on the grounds that husband's expendable income had

increased and that husband's contributions to savings and tax

deferred investments had increased since the determination of

the permanent spousal support award in April 2000.

The trial judge held hearings on the motions on December

11, 2001 and January 31, 2002. By order entered on February 27,

- 2 - 2002, the trial judge denied the motions of both parties,

finding that neither party had established a material change in

circumstances since the April 28, 2000 hearing. Both parties

appealed the February 27, 2002 order. Husband's appeal is

addressed in a separate opinion in Record No. 0635-02-1.

ANALYSIS

A party seeking modification of spousal support pursuant to

Code § 20-109, bears the burden of proving "both a material change

in circumstances and that this change warrants a modification of

support." Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605, 383

S.E.2d 28, 30 (1989). See also Barton v. Barton, 31 Va. App. 175,

177-78, 522 S.E.2d 373, 374-75 (1999). "The material change 'must

bear upon the financial needs of the dependent spouse or the

ability of the supporting spouse to pay.'" Street v. Street, 25

Va. App. 380, 386, 488 S.E.2d 665, 668 (1997) (en banc) (citation

omitted). "The determination whether a spouse is entitled to [a

reduction or increase in spousal] support, and if so how much, is

a matter within the discretion of the [trial] court and will not

be disturbed on appeal unless it is clear that some injustice has

been done." Dukelow v. Dukelow, 2 Va. App. 21, 27, 341 S.E.2d

208, 211 (1986).

I. through III. Husband's Income

Wife contends husband's income has increased 7.76% since

April 2000 and that this increase constitutes a material change in

- 3 - circumstances justifying an increase in her spousal support award.

Wife presented evidence that husband had increased his savings and

investments almost $24,000 since April 2000. She also asserted

that husband had increased his contributions to his 401(K) plan

and made extra payments toward the principal of a mortgage on

rental property he owns. Wife asserted that her debt exceeds her

savings and she is unable to pay her expenses with the present

amount of spousal support.

Husband presented evidence that wife's figures were

inaccurate and were based on one-time payments and transition

income from his military career to civilian employment in 2001.

He stated that he was paid in advance for work performed overseas

and that, when he refinanced the property he owns in Alabama, he

reimbursed himself for expenses related to the property. Husband

also asserted that he received a tax refund of over $3,000 for the

year 2000 and payment for unused vacation when he retired, which

are non-recurring sources of income.

In April 2000, the trial judge found that husband's monthly

income was $7,387. At the January 31, 2002 hearing, the trial

judge accepted husband's evidence concerning his change in

income since 2000. "The credibility of the witnesses and the

weight accorded the evidence are matters solely for the fact

finder who has the opportunity to see and hear that evidence as

it is presented." Sandoval v. Commonwealth, 20 Va. App. 133,

- 4 - 138, 455 S.E.2d 730, 732 (1995). The trial judge found that,

subsequent to husband's retirement from the military, husband

was earning $7,150 per month from his civilian employment and

military retirement benefits. Thus, husband currently earns

$237 per month, or about 3%, less than he did in April 2000.

The trial judge did not abuse his discretion in accepting

husband's calculations and in finding that this is not a

material change in circumstances warranting a modification in

the spousal support award.

IV. Difference in Incomes

Wife contends the trial judge erred in failing to increase

her spousal support award where husband's monthly income, after

making child and spousal support payments, is equal to or

greater than her monthly income, which is used to support wife

and the parties' four children. Although, under the trial

judge's ruling, husband pays about forty percent of his monthly

income in spousal and child support, under these circumstances,

the trial judge did not abuse his discretion in refusing to

modify the spousal support award. The trial judge found that

wife's expenses had increased only nominally since April 2000.

Furthermore, since husband retired from the military, wife has

been receiving an additional $905 per month for her share of

husband's retirement benefits. As the trial judge stated, "the

numbers have changed a little bit, but on an analysis, they

- 5 - haven't changed much." The trial judge found that the parties

were "basically in the same place they were in April of 2000,"

and that if he modified the spousal support award, the change

"would be so minimal that it would be not worth a wad."

Accordingly, the trial judge did not abuse his discretion in his

ruling.

V. Attorney's Fees

Wife asserts that the trial judge erred in refusing to

grant her motion for attorney's fees. "An award or denial of

attorney's fees is a matter committed to the sound discretion of

the trial court." Alphin v. Alphin, 15 Va. App. 395, 406, 424

S.E.2d 572, 578 (1992). "The key to a proper award of fees is

'reasonableness under all of the circumstances revealed by the

record.'" Ragsdale v. Ragsdale, 30 Va. App. 283, 297, 516

S.E.2d 698, 705 (1999) (citation omitted). Based on the

circumstances of this case, we cannot say the trial judge abused

his discretion in declining to award wife attorney's fees.

Accordingly, the decision of the trial judge is affirmed.

Affirmed.

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